Diluting free speech

Jack Balkin blogs an interesting post about an attempt by Rupert Murdoch’s (US) Fox News group to stifle free speech by litigating to enforce US trademark dilution laws:

Fox News is suing Al Franken in the New York courts, attempting to enjoin sales of his forthcoming book, “Lies, and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right.” Fox claims that Franken may not use the expression “Fair and Balanced” because it has been trademarked by Fox News. …

The most troubling aspect of the lawsuit politically is its attempt to harass a political opponent through the use of intellectual property laws. Fox News v. Franken is merely one episode in a much larger conflict between freedom of speech and intellectual property. Trademark, like copyright, has now become a general purpose device for private parties to use the state to suppress speech they do not like. And they can suppress the speech of others not merely to protect their legitimate economic interests but because of aesthetic and political disagreements as well. This is a misuse of trademark, which is designed to protect ongoing commercial interests, and it is a misuse of copyright, which is designed to promote progress in ideas, not inhibit robust debate about ideas.

We can only hope that Fox receives the bad publicity it deserves for filing this lawsuit; first, for being on the wrong side of this free speech controversy, and second, for trying to suppress people who disagree with its coverage of the news. It is particularly upsetting for a news organization to try to use the courts to suppress the speech of its political critics.

It’s worth noting that this sort of tactic could not be used successfully in Australia. We do not have the equivalent of the US “Lanham Act” (or rather its even more draconian successor), which permits corporations holding “famous” trademarks to sue where someone’s conduct may “dilute” the value of the trademark irrespective of whether it’s possible to establish that the alleged infringer’s conduct would mislead or confuse people about anything connected with the trademark. In Australia a misleading or confusing effect must positively be proved. Manifestly, no-one would be misled or confused about what Franken is doing. He is simply mentioning Fox’s trademarked slogan as a satirical device to expose what he argues is illegitimate distortion of news by Fox. Whether he’s correct or not, on any reasonable view that’s legitimate political debate and ought to be constitutionally protected political free speech, both in the US and Australia. I suspect that Fox’s argument will ultimately fail for precisely that reason but, as I say, in Australia the argument couldn’t even arise in the first place. This is one of numerous legal areas where the balance Australian law has struck between competing rights and interests is clearly superior to the Land of the Free and Home of the Brave.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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